Wizard Of Oz Court Ruling Suggests Moviemakers Can Reclaim Parts Of The Public Domain And Put It Under Copyright

from the we're-not-in-kansas-any-more,-toto dept

Another day, another story of the law letting the public domain be locked up. Back in February, we wrote about an important case about the public domain involving The Wizard of Oz and some other films. Prior to 1976, of course, you had to register works to have them covered by copyright. A company named AVELA recognized that some publicity posters for The Wizard of Oz, Gone with the Wind and some Tom and Jerry cartoons were not registered (or in some cases, were registered, but not renewed), and thus were officially in the public domain. It then made t-shirts out of some of the images in the poster.

The lower court gave a very confused ruling, in which it admitted the original posters were in the public domain, but then said the characters were still copyrighted, even though the movies came out later, because that imbued new characteristics on the public domain works and protected them. Or something. Making this even more complicated, when it comes to the Wizard of Oz, is that the original books are definitively in the public domain, but the original movie is not.

On appeal, the Eighth Circuit court seems to have more or less supported the original ruling, though with different reasoning. The court does say that the publicity materials are in the public domain. But then says that the new works (the designs on the t-shirt) results in a derivative work that "comes into conflict with a valid copyright." Conceptually that makes sense. You can't take a public domain work and then assume that gives you free reign to bring in other copyrighted work. But it's troubling to see how the court then concludes that such derivative works occur in this case. It basically says that because the actors in the movie imbued the characters with specific traits beyond what was in the original works, even the use of still images that are public domain can infringe on the copyrights of the depictions of those characters.

We agree with the district
court’s conclusion that Dorothy, Tin Man, Cowardly Lion, and Scarecrow from The
Wizard of Oz, Scarlett O’Hara and Rhett Butler from Gone with the Wind, and Tom
and Jerry each exhibit “consistent, widely identifiable traits” in the films that are sufficiently distinctive to merit character protection under the respective film
copyrights....

AVELA correctly points out that the scope of copyright protection for the
characters in the films The Wizard of Oz and Gone with the Wind is limited to the
increments of character expression in the films that go beyond the character
expression in the books on which they were based. See Silverman, 870 F.2d at 49
(“[C]opyrights in derivative works secure protection only for the incremental
additions of originality contributed by the authors of the derivative works.”). While
true, this has little practical effect in the instant case, as a book’s description of a
character generally anticipates very little of the expression of the character in film....

The film actors’ portrayals of the characters at issue here appear to rely upon
elements of expression far beyond the dialogue and descriptions in the books.
AVELA has identified no instance in which the distinctive mannerisms, facial
expressions, voice, or speech patterns of a film character are anticipated in the
corresponding book by a literary description that evokes, to any significant extent, what the actor portrayed. Put more simply, there is no evidence that one would be
able to visualize the distinctive details of, for example, Clark Gable’s performance
before watching the movie Gone with the Wind, even if one had read the book
beforehand. At the very least, the scope of the film copyrights covers all visual
depictions of the film characters at issue, except for any aspects of the characters that
were injected into the public domain by the publicity materials.

As THREsq notes, it's this section above that may be sending Hollywood lawyers into a bit of a tizzy as it appears to potentially extend the encroachment on the public domain, by suggesting that any general "character" traits that are added by a film adaptation, even of a public domain work, can be copyrighted. Considering there are a bunch of adaptations being made of The Wizard of Oz based on the public domain books, some lawyers are worried that this ruling gives Warner Bros. leverage over those other movies:

"The court's statement that the film copyrights cover 'all visual depictions' of the characters recognizes that there is often a quintessential version of a literary character that exists in the public's mind as a result of a popular film adaption," says Aaron Moss, the chair of litigation at Greenberg Glusker. " Any filmmaker that wants to create a new version of a literary work -- even one in the public domain -- needs to be careful not to use copyrightable elements of characters that first appear in protected motion picture versions of the works. Of course, when it comes to characters depicted by live actors, this may be easier said than done."

In case you didn't get that, if you were to create a movie Wizard of Oz entirely based on the book, if one of the actors does pretty much anything that suggests a similarity to the movie version, rather than the book version, it could be infringing. At the very least, this completely rules out any attempt to make a nod or homage towards the original film. But, more importantly, if just in the nature of being an actor, one of the actors imbues one of these characters with similar traits to the 1939 movie... that can be infringing.

And that's insane. That goes way beyond the intent of copyright law, and again seems to destroy the laughable notion that there's a real split between protection of ideas and expression.

Reader Comments

My inability to comprehend your point leads me to accuse you of trying to claim that a frame by frame remake of copyrighted films with the artists (con artists) mimicking every nuance and expression of the original artists performances is valid expression or creative in any way.

Fair Use

a frame by frame remake of a copyrighted film with the artists mimicking every nuance and expression of the original artists performances could be considered satire or parody, in which case it would be very much protected as valid expression.

Re: Re:

Sorry folks but minus 1 insightful for thinking that any AC with the kind of awareness to acknowledge any personal inability would go ahead to make the kind of statement made here.

Also you allow yourselves to be dragged way off topic with ridiculous ease.

What is interesting here is with parts like say Moses, Cleopatra, Caesar, Buddha.
Will every future person acting these parts have to ensure that no part of their performance which is not covered in the public domain origins of the part, in any way bears any resemblance to "unique expressions" brought out by previous actors unless the actor, director, studio etc. or risk being sued.

I doubt it would really work out as having any obvious effect, but, could such a fear possibly prevent people from risking it and not making their version of a public domain story, or of incorporating a public domain character into a new story? That would seem possible.

Re: Re: Re:

Re: Re: Re: Re:

Disney would be a loss a while ago. Now I'm inclined to think it'd be a good thing to refresh the kids content. Pixar gave it some fresh air but in my opinion Disney is stuck in a cast unable to evolve and properly produce kids content. Or maybe I'm wrong. Still, that's what I feel.

Re: Re: Re:

Yes, there will be a chilling effect if this sticks.

In the meantime, we should all be amused at how snookered commenters were by your initial (missing /sarc tag) comment. "My inability to comprehend leads me to conclude..." Probably an excellent way for every shill to preface their comments.

Non-Original Sin

This whole thing is stupid. Copyright to something based on something else which is in the public domain should follow the same rules as the GPL:

If you use something from the public domain, all your creation is subject to the same public domain status. Your work was derivative of something which belongs to all of us, and you want to protect it? C'mon, come up with something original, and we'll protect that.

Re: Non-Original Sin

Sorta. What they should be saying is, "Everything from the book is public domain. Everything with an expired copyright is public domain. But anything added from the movie is copyrighted." maybe that's what they are trying to say, but failing.
I don't see a problem with this from a macro level, but if we start talking, "the new scarecrow squinted like movie scarecrow, and wiggled his hips the same way" I think it's gone too far. Plot elements, scenes depicted only in the movie, yes. Body language, no.

With Feist v. Rural?

This is an insane ruling. It greatly conflicts with Feist v. Rural Telecommunications. You can't take non-copyrighted data or works (public domain works are not copyrighted, and cannot be) and capture them in a copyright for a creative, derivative work.

It's called thin copyright. It's the reason copying the data in a phone book is allowed, but photocopying the phonebook and calling it your own is not.

What the heck was the 8th Circuit smoking? I hope they appeal, this is a terrible, terrible ruling that ignores Supreme Court precedent.

Re: With Feist v. Rural?

But this looks equivalent to photocopying! There's no other data presented on the T-shirts except what's locked up (wrongly, I think) in the WOO movie; it's a GRAPHIC copy not text. It's mingled sources whether the publicity posters are PD or not.

Original Film

I'm not sure that calling the 1939 adaption of the novel The Wonderful Wizard of Oz, "the original movie" is quite appropriate. At the time, it was not the first adaptation of the novel (and has been adapted several times since too). There had been several short and at least one feature-length adaptation of the novel at the time, many of which are in the public domain. I assume that the court didn't take into account all of these adaptations when it made its decisions.

Re: Original Film

Stock answer: AVOID DERIVATIVE.

If you majorly depend on a previous work and are merely trying to cash in on its popularity, then you are NOT an artist. -- The prior may not be an artist, either! -- But it's the DERIVATIVE that makes this questionable, and as you see, WHEN the question comes up in court, it's getting shot down, regardless what you think the law is, Mike. -- I'd agree with you on the public domain bit and go further by stating that WOO should totally be public domain by now, BUT these court cases on the margins can be used by media companies to impose yet worse on us, so if only for that reason, STOP using DERIVATIVE works, people!

Re: Stock answer: AVOID DERIVATIVE.

"STOP using DERIVATIVE works, people!"

So, are you also calling for Hollywood to stop produced remakes, sequels and adaptations of pre-existing materials? Same for the professional artists, game developers, authors and musicians out there? Or, does that only apply to us peons?

Re: Re: Re: Stock answer: AVOID DERIVATIVE.

Re: Stock answer: AVOID DERIVATIVE.

I completely agree w/you, Blue Balls, and will try to show solidarity with you by randomly capitalizing WORDS.

It's plainly obvious that the Wizard of Oz movie should NEVER have been CREATED. Also, every SINGLE adaptation of one medium to another, SUCH as videogames made from movies, BOOKS made from games, books MADE from movies, movies made FROM games, etc. ETC., should all BE summarily burned and done away with.

I don't know why THESE other sheep can't see that all this derivative "culture" is actually JUST a mechanism by which dirty whorish capitalist PIG dogs can take away our freedoms here in 'Merica. It seems PRETTY clear that this court case was obviously influenced by THE RICH and if we could just find some way to tax anyone with money anywhere OUT of existence then we'd all have free lollipops and blowjobs each saturday morning to go along with our communal circle jerk.

Re: Stock answer: AVOID DERIVATIVE.

No. Derivative works sometimes are much better than the original. A performance of the same theater play can produce completely different results if different artists are allowed to perform.

It's not the use of derivative works that should be the problem. Copyright is the problem and needs reform urgently to prevent abuses. And regardless what you think about the law, it should be fair and it is intended to promote creativity. This does not promote creativity.

Re:

Das Kapital

The American Free Market works a little different than one would think. You are free to start a business. After that it is your job to do everything possible to get that business to the status of monopoly. Fair trade is frowned on. You MUST have monopoly. This rule was established in the late 19th century although our government has been trying to tell us otherwise ever since.

Its a free market as long as your company is making "Chicken Feed" and not a real player in the game.

Re: Re: Das Kapital

While other countries do a lot to deny their citizens of their rights, at least they do a lot to provide for their citizens (ie: healthcare in Canada, the Chinese government provides for its citizens).

Not only does the U.S. government provide for its citizens with absolutely nothing, the U.S. government goes through great lengths to deny its citizens the right to provide for themselves (through the government establishment of monopolies).

You can't have it both ways. Either the government provides for its citizens or it stops doing so much to deny us the ability to provide for ourselves.

Government established monopolies reduce aggregate output and they increase unemployment. If competitors can enter these otherwise monopolized markets, those competitors create jobs for more people, increase output, which enables more people to provide for themselves. People can get more jobs without having to go through a monopolist gatekeeper, gatekeepers who will necessarily hire fewer workers than the free market (monopolies reduce aggregate output and less aggregate output requires less labor), and produce less product for consumers to consume (and less product can provide for fewer people).

Re: Re: Re: Das Kapital

While I despise my (US) government, I have to disagree that it provides nothing. My health care is all through the government since I am permanently disabled and on dialysis waiting for a (second) kidney transplant, which the government will fund. Just because our healthcare SUUUUUCKS doesn't mean we don't have it.

It DOES make sense...sorta...

Actually, in this case it's fairly simple.
The movie posters...as complete art...ARE PD and CAN be used with impunity.
Their copyrights either never existed or weren't renewed.
However, taking ELEMENTS which show specific characters out of context to the WHOLE poster (and utilizing the makeup designs specific to the movie as well as "catch phrases" specific to the movie) is NOT.
In a similar vein, the makeup/imagery for the Universal Monsters (Frankenstein, WolfMan, etc.) is trademarked and, while you CAN do a Frankenstein movie, comic, e-book, etc., heaven help you if your Monster looks like the Universal version!
In this case, the Oz movie make-up designs are probably trademarked as well.
You'll note other Oz projects use different makeup/character designs, some based on the original illustrations, which ARE Public Domain!
In addition, there ARE elements specifically-created for the movie (Ruby slippers as compared to the book's silver slippers) which are not PD and cannot be used without a license!

Re: Re: It DOES make sense...sorta...

As soon as they chopped the poster to pieces, they started to take the images out of context. While each piece is part of a public domain work, the characters and their catch phrases are part of a copyright work.

You cannot compare to a book in the public domain, because that book is not part of a larger copyright work.

They could have republished the poster as is until the end of time without issue. But derivative products from this poster are also, by definition, derivative of the copyrighted work. As soon as they started down that road, they are violating the copyright.

Oh and Mike, you can apologize now, regarding comments made in the original thread on this many moons ago. :)

Re: Re: Re: It DOES make sense...sorta...

Context shouldn't matter. As long as the t-shirt designer can show evidence that the design is a part of a public domain work, she should be in the clear. That headshot is not part of an overall copyrighted work. It is part of a public domain work.

Another day, another copyright absurd. I can see Warner trying to take advantage of that.

What's shocking is that we are talking about a 70+ year old movie. The movie itself is public domain already. Or should be. Most actors are probably dead by now or made enough money (I believe money goes in fair amounts to the artists as much as I believe in Santa Claus but let us pretend it goes) and even the useless executive producers of the time must have made enough money by now (if they are still alive that is).

Not happy with the above stupidity they wanna copyright something from the public domain based on subjective personality trait? If I want I can build solid evidence to say that Snow White has a locked psychopath personality within her because no freakin woman would act that way naturally so Jig Saw could be Snow White in disguise and thus the movie Saw is infringing Disney's copyright. Crazy? You bet, as crazy as what I've just read in this article.

And let's not forget kids performing a play based on the said book. Suppose lil' Dorothy has a natural gift for acting and does some nice performance that reminds old folks in the audience about 1939 Dorothy. She's infringing copyright for performing a damn PUBLIC DOMAIN character.

It DOES make sense...sorta...really...

E. Zachary Knight utters...
This t-shirt producer took a public domain work, the movie poster, and chopped it into pieces. Then she took those pieces and made t-shirts out of them.
I really don't see that as being any different than taking individual chapters of the original public domain book and printing them in different printings of a periodical.
Each piece is still a part of the public domain.

Nope.
As I mentioned earlier, the Oz makeup designs are, in fact, trademarked by MGM/Turner/whoever owns them now.
Taken out of context (the original poster) and adding catch-phrases created for the movie does create a potential violation.
Again, look at the Universal Monsters.
A number of companies sell repros of the movie posters, which ARE Public Domain!
But, the make-ups ARE trademarked and if you do a t-shirt with JUST a head shot of Karloff's Monster, Universal will be after you.
Do a t-shirt of the COMPLETE poster, and you're golden.
Do a t-shirt of a visually-different rendering of the Frankenstein Monster (for example, both Marvel and DC Comics have their own quite-different versions) and you're good to go.
Got it? ;-)

Re:

"AVELA has identified no instance in which the distinctive mannerisms, facial expressions, voice, or speech patterns of a film character are anticipated in the corresponding book by a literary description that evokes, to any significant extent, what the actor portrayed."

Um, how does a T-shirt with a still picture of an actor infringe on any of that? Crazy ruling.

A Tragedy Devolving Into Farce

An absolutely awful court decision - but consistent with the string of awful decisions on copyright interpretation that have oozed out of the courts in recent decades.

Mike is correct that this not only destroys the idea/expression dichotomy that is (theoretically) supposed to exist, but also ignores the traditional "fixation" requirement that copyright is supposed to require under law.

The concept of copyrighting "characters" outside of the concrete images or book passages they are depicted in destroys the concept of the fixation requirement. If I copy the concrete images of Sean Connery from 'Goldfinger', I have violated copyright (fair use considerations aside). But if I make my own creative film using a different actor in a white tux, drinking a martini and announcing himself as "Bond...James Bond..." I have not "copied" anything since none of the creative elements I have used were "fixed" in a previous work. It was made with a different camera, using a different actor, with different lighting, and different soundtrack which combines to recall a previously made character. But to the extent that a "character" can exist outside of fixed, concrete bounds means that in order to "copyright" the character, you must extend copyright into the realm of ideas - not fixed expression which copyright law is supposed to require as a Constitutional limit.

This is just one of the many contradictions that modern copyright jurisprudence offers us. And why it is coming to an increasing head with how the free speech is used in the digital/information age.

Re: A Tragedy Devolving Into Farce

The character is an expression, you listed some of the components of that character, which make them unique. Depending on how you use it, you could get in trouble.

A "spy in a tux" isn't enough. Having his name be James Bond might. When you get too close to the character, you are pushing into the areas that are part of the original expression. I have a hard time imaging why you can't see it as clearly standing on other people's work.

In nicer terms, why not just come up with your own spy guy, who drives a different car, wears sports coats, and calls himself "Danny, Danny Levine" and goes from there? Why would you want to bother going over a piece of lawn that has already been mowed to the point where no more grass grows?

Warner Bros v AVELA opinion (pdf)

A.V.E.L.A., Inc., X One X Productions, and Art-Nostalgia.com, Inc. (collectively, “AVELA”) appeal a permanent injunction prohibiting them from licensing certain images extracted from publicity materials for the films Gone with the Wind and The Wizard of Oz, as well as several animated short films featuring the cat-and-mouse duo “Tom & Jerry.” The district court issued the permanent injunction after granting summary judgment in favor of Warner Bros. Entertainment, Inc., Warner Bros. Consumer Products, Inc., and Turner Entertainment Co. (collectively, “Warner Bros.”) on their claim that the extracted images infringe copyrights for the films. For the reasons discussed below, we affirm in part, reverse in part, and remand for appropriate modification of the permanent injunction.

Re: Warner Bros v AVELA opinion (pdf)

At the very least, the scope of the film copyrights covers all visual depictions of the film characters at issue, except for any aspects of the characters that were injected into the public domain by the publicity materials.

(emphasis added)

But any aspects of the characters that are present on the T-shirts, which were copied directly from publicity posters that are now public domain, were "injected into the public domain by the publicity materials" and so the shirts cannot infringe!

PD or not PD?

This movie is actually PD in most parts of the world (minus the music publishing rights) and so now I'm wondering does the fact that it was digitally remastered in 2008 for re-release in 2009 for the 70th Anniversary put it back under copyright?

In other words does a re-master and restoration effort renew the copyright at all?

Re: PD or not PD?

"In other words does a re-master and restoration effort renew the copyright at all?"

I'm no expert, but my understanding that it does, but only for the remastered print. That is, the remastered version is copyrighted from the day of release, but that doesn't affect the copyright status of the non-remastered print. Anyone else is free to correct me if I'm wrong.

Define "Original Movie"

The 1939 musical version of the WIZARD OF OZ is the movie at play here, but it is not the "original movie" by any stretch of the imagination.

There are two silent movies that come to mind, the first being a 1910 production (available at archive.org) and the other a 1925 affair that starred Oliver Hardy as the Tin Woodman. The 1910 film, THE WONDERFUL WIZARD OF OZ, is about as good as one would expect from such early cinema, whereas the 1925 WIZARD OF OZ film is simply awful in writing, performance and production (Ollie is its only saving grace IMO).

By the way, for you trivia buffs... MGM made the 1939 Oz musical as an attempt to steal thunder from Disney, who was enjoying success with SNOW WHITE. MGM bought the film rights to L. Frank Baum's first book only, "The Wonderful Wizard of Oz" and Disney grabbed the rights to the remaining twelve (yes, L. Frank Baum wrote thirteen Oz books and stories continue to be written to this day). The 1939 production did not see profits until it began running on television.

wizard of oz copyright

i understand the ruling in a strange sort of way, its saying the movie creates a derivative with the movie portrayals and it does in a sense. the slippers are ruby red instead of silver, the flying monkeys are not controlled by a hat and whole sections are left out from the book. the emerald city is not the blinding jewel city that blinds you so bad you need shades. the wizard doesn't appear exactly as in the book.